William & Mary Journal of Race, Gender, and Social Justice


This article examines child custody and visitation cases in which courts operate under the assumption that parents who live openly as sexual minorities will harm their children. Based on this assumption, courts frequently impose restrictions on parents, requiring them to live closeted lives in order to have access to their children. Part I of this article introduces the concept of the judicially imposed closet as courts have applied it through several custody and visitation cases. Part II examines social science research concerning the psychological impact of "family secrets" on parents and children as well as research on sexual minority parenting. This research does not support the assumption of custody and visitation courts that it is harmful to children when their parents live openly as sexual minorities. Part III analyzes how, in cases involving sexual minority parenting, such as same-gender marriage, foster care, and adoption, the underlying assumption is that sexual minority parents who are open about their sexual orientation are raising happy, healthy, and well-adjusted children. Part IV then compares adoption cases with child custody and visitation cases examining how the same set of facts in an adoption case would be used against a sexual minority parent in a custody or visitation case. Finally, Part V argues that if courts were to treat sexual orientation as a neutral factor, as they do in most of the adoption cases involving sexual minority parents, then the courts could properly focus on assessing each parent's child-raising abilities, investigating the nature of the parent-child relationship, and preserving the emotional attachment of the children to their parents. It is these factors, not a parent's sexual orientation, that are relevant to determining the true best interests of the children in custody and visitation disputes.

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